Corbett v. Kingan

• Decision Date: 23 June 1917
• Docket Number: Civil 1528
• Citation: 166 P. 290,19 Ariz. 134
• Parties: H. S. CORBETT, Trustee, Appellant, v. SAMUEL L. KINGAN, Trustee, Appellee; FARRAND O. BENEDICT, Defendant
• Court: Arizona Supreme Court

166 P. 290

19 Ariz. 134

H. S. CORBETT, Trustee, Appellant, v. SAMUEL L. KINGAN, Trustee, Appellee;

FARRAND O. BENEDICT, Defendant

Civil No. 1528

Supreme Court of Arizona

June 23, 1917

APPEAL from a judgment of the Superior Court of the county of Pima. G. W. Shute, Judge. Reversed.

Mr. Ben C. Hill, for Appellant.

Mr John H. Campbell and Mr. S. L. Kingan, in Proper Person, for Appellee.

OPINION

ROSS, J.

This is the second time the case has been before this court. The issues involved, as made by the pleadings, are set out in 16 Ariz. 440, 146 P. 922.

The case was tried with a jury, and a great deal of evidence introduced. At the close of the appellant's case, on the motion of appellee, Kingan, all the testimony given on behalf of appellant was stricken, upon the ground that the evidence introduced was immaterial. Thereupon the jury was instructed by the court to return a verdict in favor of the appellee. Upon this verdict judgment was entered in favor of appellee Kingan and against the appellant. This appeal is prosecuted from the judgment and from the order overruling motion for a new trial.

The action is for the specific performance of a contract alleged to have been made by Julia A. Knapp with Farrand O. Benedict her nephew, in which said contract it is claimed that Julia A. Knapp agreed to give to Benedict all of her property, both real and personal, of which she should be possessed at the time of her death, in consideration that the said Benedict would live with her until that event should happen, and do and perform certain things in the way of caring for her and looking after and improving her property. This contract is alleged to have been made in 1892, and, in so far as Benedict's duties and services were concerned remained the contract thereafter. But on July 14, 1900, it is claimed the contract was modified so as to make Kate Benedict Thompson and William B. Benedict, sister and brother of Farrand O. Benedict, beneficiaries in the sum of $1,500 each that in pursuance and in accordance with the terms of said modified contract Julia A. Knapp, on said last date made and executed her will. On June 6, 1908, Julia A. Knapp made and executed another will, in which she expressly revoked all wills theretofore made. In this last-mentioned will she devised all of her property, both real and personal, to the appellee, Kingan, in trust, with directions that the rents, issues, and profits thereof be paid to Farrand O. Benedict during his life, with the remainder over to Kate Benedict Thompson and William B. Benedict. To this last will on March 7, 1910, was added a codicil, in which the remainder was diverted from Kate Benedict Thompson and William B. Benedict to the children of Farrand O. Benedict in case he should remarry and leave children of his body surviving him. Julia A. Knapp died on the twenty-sixth day of September, 1912.

The contract between Farrand O. Benedict and Miss Knapp, and which is the basis of this suit, was on the second day of February, 1914, by the said Benedict assigned, conveyed, and transferred to appellant, Corbett, as trustee for Frances L. Benedict, William B. Benedict, and Kate Benedict Thompson, with the agreement and understanding that said Corbett would take whatever legal steps he found necessary to recover the estate from appellee, Kingan. In said contract of assignment it was provided that Frances L. benedict, who is the wife of Farrand O. Benedict, should receive and be entitled to Farrand O. Benedict's share after the payment of all expenses and charges.

At the trial the appellant undertook to prove the contract as alleged. To that end he offered as witnesses to the contract the living party thereto, Farrand O. Benedict, and his wife, Frances L. The appellee objected to their being permitted to testify on the grounds that they were disqualified under the law. The ruling of the court in refusing to permit these two witnesses to testify or to require them to testify as to the terms and conditions of said contract is assigned as error.

Section 1678 of the Civil Code of 1913 provides that in an action by or against an executor, administrator, or guardian, when judgment may be had against them as such, neither party shall be permitted to testify to any transaction or statement of the decedent, unless called by the opposite party or required to testify by the court, and this provision, with its restrictions and limitations as to qualifications of witnesses, is extended to all actions by or against the heirs, devisees, and legatees or legal representatives of the decedent, when such action arises out of any transaction with the decedent and when judgment may be had against them as such. This disqualification of parties as witnesses is an exception to the general rule of qualification; the general rule being that every person, including the party, may testify in any action or proceeding and that no person is incompetent to testify because he is a party to the suit or proceeding or interested in the issue. Sections 1674, 1675, Civil Code 1913. It will be noted that the disqualification is not absolute; for it may be removed by the opposite party calling his adversary as a witness, or by the court if, in its discretion, it chooses to require him to testify.

The suit is prosecuted against appellee, Kingan, as trustee. He deraigns his title to the property through the will of Julia A. Knapp, who devised it to him in trust for the use and benefit of Farrand O. Benedict during his life with the remainder over. The will under which he claimed was duly probated, the estate administered upon and distributed to him as trustee, and his duties as executor terminated. The suit is not against appellee, therefore, in his representative capacity as executor. Is he, as a party to the suit, within any of the terms "heirs," "devisees," "legatees," or "legal representative" of the decedent? While he is not the devisee of the beneficial estate, he is in fact and in law the devisee of the legal estate, and therefore falls literally within the class of parties designated in the statute restricting the opposite party from testifying unless called by his opponent or required to testify by the court. The judgment in this case must be either for or against him as the devisee of the legal estate of Julia A. Knapp, the decedent.

It is claimed by the appellant that Frances L. Benedict, for whose benefit the suit is prosecuted, is not a party thereto, and that the disqualification extends only to the "parties" to the suit. The general rule being that all persons are qualified to testify, whether they be parties to the suit or interested in the issues, he insists that the exception to the general rule should be strictly construed, and that only those persons clearly and exactly within the exception should be precluded from testifying to any transaction or statement with the decedent.

The rule of qualifications and its exceptions, as contained in sections 1674, 1676, and 1678 of the Civil Code, supra, is the same as the federal rule found in section 858 of the United States Revised Statutes (U.S. Comp. Stats. 1916, § 1464), and was probably adopted from the latter statute. In Potter v. National Bank, 102 U.S. 163, 26 L.Ed. 111, the court, after reciting the facts which showed that the witness was interested in the issues, gave the history of the legislation in connection with section 858 and announced the rule that the disqualification extended only to the "parties" of record in the following language:

"The existing statute (Rev. Stats., § 858) seems too plain to require construction. The first clause of that section shows that there was in the mind of Congress two classes of witnesses, those who were parties to the issue, that is, parties to the record, and those interested in the issue to be tried, that is, those who, although not parties to the record, held such relations to the issue that they would lose or gain by the direct legal operation and effect of the judgment. A witness may be interested in the issue without being a party thereto, a distinction which seems to have been recognized in all the statutes to which reference has been made. But, whether a party to or only interested in the issue, the witness is not to be excluded in the courts of the United States upon either ground, except that in actions in which judgment may be rendered for or against an executor, administrator, or guardian no party to the action can testify against the other as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. The proviso of section 858 excludes only one of the classes described in its first clause, those who are, technically, parties to the issue to be tried, and we are not at liberty to suppose that Congress intended the word 'party,' as used in that proviso, to include both those who, according to the established rules of pleading and evidence, are parties to the issue, and those who, not being parties, have an interest in the result of that issue."

The Potter-National Bank case was approved and followed in Snyder v. Fiedler, 139 U.S. 478, 35 L.Ed. 218, 11 S.Ct. 583.

In Berry v. Sawyer (C.C.), 19 F. 286-289, the court said, in referring to section 858:

"That section, in the most comprehensive terms, removes all disqualifications to testify by a party to an action, or by one interested in the issue tried; but it provides 'that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with or statement by the testator, intestate, or ward,...